The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.168 of 2024 K. Dinesh Kumar …. Petitioner Mr. Tanmay Mishra, Advocate -Versus- State of Odisha and another Opposite Parties Mr. N.K. Praharaj, AGA Mr. Jugal Kishore Panda, Advocate for O.P. No.2 …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:24.12.2024 1. Instant revision under Section 401 read with Section 397 of the Code of Criminal Procedure, 1978 (hereinafter referred to as ‘the Cr.P.C’) is filed by the petitioner challenging the legality and judicial propriety of the impugned order dated 14th March, 2024 as at Annexure-4 passed in connection with S.T. No.123 of 2022 by learned 1st Additional Sessions Judge, Berhampur, whereby, an application under Section 227 Cr.P.C. seeking discharge from the alleged offences under Sections 493, 294, 427 and 376(2)(n) read with 34 IPC was declined followed by the order framing the charge against him on the grounds inter alia that no case much less for an offence under Section 376(2)(n) IPC is made out. 2. As per the prosecution case, the informant lodged the FIR dated 20th May, 2020 mentioning therein that the petitioner denied marrying her after having a relationship and forced sexual intimacy, as a result of which, Berhampur Town P.S. Case No.97 was registered for the offences alleged, later to which, the CRLREV No.168 of 2024 Page 1 of 14 chargesheet was filed, whereafter, the petitioner moved the learned court below seeking discharge with an application under Section 227 Cr.P.C., which, as earlier stated, was rejected followed by the order of framing of charge under Annexure-4. 3. The contention of the petitioner is that learned 1st Additional Sessions Judge, Berhampur, without proper application of judicial mind, framed the charge against him vide Annexure-4, which is not sustainable and liable to be quashed. It is claimed that the informant was in a consensual relationship with the petitioner, hence, no offence under Section 376(2)(n) IPC is established. It is further claimed that the victim has filed an application under Section 9 read with Section 5(13) of the Hindu Marriage Act, 1955 before the court of learned Family Judge, Berhampur in Civil Proceeding No.241 of 2021 with a pleading that she and the petitioner were leading a life as spouses and in that view of matter, the relationship cannot be said to be forceful, however, with such an allegation of rape, the report was lodged, which has ultimately led to the framing of charge on 14th March, 2024. It is also stated that no offence under Section 493 IPC is prima facie proved but the learned court below miserably failed to consider the same and framed the charge for the said offence as well. It is, hence, pleaded that the impugned order under Annexure-4 is deserves be set aside followed by discharge of the petitioner fully.
Legal Reasoning
another (2021) 18 SCC 517. A decision of this Court in Dayanidhi Nayak Vrs. State of Orissa and others 92 (2021), CLT 673 is relied on further to claim that the necessary ingredients of the offence under Section 493 IPC to be conspicuously absent. An order of the Kerala High Court in CRL. REV. PET. No.931 of 2023 dated 9th October, 2023 in the case of Nimmy Mathew Vrs. State of Kerala and others is placed reliance on, which is based on the decision in Ghulam Hassan Beigh (supra) on the point of discharge. One more case law in M/s Karnataka EMTA Coal Mines Limited and Another Vrs. CBI 2024 SCC Online SC 2250 is CRLREV No.168 of 2024 Page 3 of 14 referred to by Mr. Mishra, learned counsel to contend that no justifiable ground exists for proceeding against the petitioner. 6. On the other hand, Mr. Praharaj, learned AGA for the State submits that a prima facie case is clearly made out against the petitioner and therefore, the learned court below did not consider it proper to discharge him and rightly, rejected the application filed under Section 227 Cr.P.C. It is further submitted that the material evidence is subject to scrutiny of learned court below and in so far as the defence of the petitioner is concerned, it shall have to be tested during the trial and hence, therefore, he cannot demand discharge and correctly, the same stood rejected vide Annexure-4. 7. Mr. Panda, learned counsel for the informant, namely, opposite party No.2 submits that the petitioner forced a relationship on the victim and on the pretext of marriage in future, developed the sexual relationship, as a consequence, she became pregnant and in the meantime, she has given birth to a male child. It is further submitted that the petitioner is found to have fathered the child born to the victim with the DNA report received and in any view of the matter, considering the nature of allegations made and substantiated with the filling of chargesheet, upon a satisfaction reached at regarding an offence under Section 376(2)(n) IPC and other offences being committed, the impugned order under Annexure-4 is fully justified and while advancing such an argument, he relies on a decision of a Co-ordinate Bench of this Court in Ghanashyama Mandothia Vrs. State of Odisha and Another (2023) 90 OCR 42. 8. Whether, the impugned order under Annexure-4 with the framing of charge vis-a-vis the petitioner for the alleged offences rejecting the application under Section 227 Cr.P.C. filed by him is CRLREV No.168 of 2024 Page 4 of 14 justified? In fact, the parents of the petitioner have been discharged for an offence under Section 294 IPC. On perusal of the chargesheet, the Court finds that the parents of the petitioner were booked only for an offence under Section 294 read with 34 IPC, however, they have been discharged by the learned court below but, a similar relief to the petitioner was declined vide Annexure-4. Considering the materials received along with the chargesheet, learned 1st Additional Sessions Judge, Berhampur held that a prima facie case is made out against the petitioner for the alleged offences, hence, refused to discharge him and thereafter, framed the charge and proceeded to summon the witnesses to be examined by the prosecution. 9. The role of a court while entertaining an application under Section 227 Cr.P.C. has been the subject of discussion and debate and in catena of decisions, the Apex Court held and observed that such an exercise is not a mere formality. The decision in Ghulam Hassan Beigh referred to by Mr. Mishra, learned counsel for the petitioner is on the point of framing of charge and the duty of the court enjoined, when discharge is claimed. Referring to the decision in Sajjan Kumar Vrs. CBI 2010 (9) SCC 368, the Apex Court in the aforesaid decision held and concluded in the following words: “27. Thus, from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge-sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. CRLREV No.168 of 2024 Page 5 of 14 However, the material which is required to be evaluated by the court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution.” 10. It has been held therein that the trial court at the time of framing of charge shall have to consider the materials on record and to briefly state the reasons in support of its opinion though examination of the same with meticulous scrutiny is prohibited. It has been held that the evidence collected is sufficient to presume that the accused has committed an offence, a strong suspicion would be enough to frame charge and even observed to the extent that apart from the material, which is placed in the shape of a final report in terms of Section 173 Cr.P.C. the Court may also rely upon such other evidence of sterling quality having a direct bearing on the charge led before it by the prosecution. 11. As per the submission of Mr. Mishra, learned counsel for the petitioner, learned court below grossly erred to hold that a case CRLREV No.168 of 2024 Page 6 of 14 under Sections 493 and 376(2)(n) IPC to have been made out against the accused, when the materials produced along with the chargesheet proved it otherwise, since the relationship between the parties has been admittedly consensual. The fact that, a case under Section 493 IPC is not prima facie established, has also been entirely lost sight of, while framing of charge vide Annexure-4. 12. In support of the contention that a case under Section 493 IPC is not proved, Mr. Mishra, learned counsel cited one more decision in Brij Mohan Kushwaha Vrs. State of UP decided in
Arguments
4. Heard Mr. Mishra, learned counsel for the petitioner, Mr. Praharaj, learned AGA for the State and Mr. Panda, learned counsel for opposite party No.2. 5. Mr. Mishra, learned counsel for the petitioner would submit that the relationship between the petitioner and informant was with consent and it was for a period of one year and thereafter, when the marriage between them did not materialize and the CRLREV No.168 of 2024 Page 2 of 14 former declined to marry the latter, the report was lodged and in absence of any material to show that there was no intention to go for a marriage from the very inception and when a breach of promise to marry is made out rather, learned court below could not have framed a charge for an offence under Section 376(2)(n) IPC. It is contended that the other offence under Section 493 IPC is also not established, since the petitioner is not alleged of having deceived the informant and with any such intention ever, induced to make her believe that she was lawfully married to him and as a result, co-habitation to have taken place but unfortunately, the learned court below committed serious illegality in framing the charge for the said offence. It is contended that learned 1st Additional Sessions Judge, Berhampur lost sight of the settled principles of law, while dealing with the application under Section 227 Cr.P.C. and stating so, Mr. Mishra, learned counsel for the petitioner relies on a decision of the Apex Court in Ghulam Hassan Beigh Vrs. Mohammad Maqbool Magrey and others (2022) 12 SCC 657. In support of the contention that a case for an offence under Section 376(2)(n) IPC is not established, Mr. Mishra, learned counsel cited the decision of the Supreme Court in Sonu alias Subhash Kumar Vrs. State of Uttar Pradesh and
Decision
Misc. Bench No.13935 of 2021 and disposed of on 7th July, 2021 by a Bench of Allahabad High Court, wherein, it is held that in case of a promise to marry having relationship with the victim is not to attract an offence under Section 493 IPC. Against the framing of charge for an offence under Section 294 IPC, a decision of the Apex Court in N.S. Madhanagopal and another Vrs. K. Lalitha, (2022) 17 SCC 818 is cited at the Bar. 13. Being alive to the settled law decided and reiterated in Ghulam Hassan Beigh case with regard to the role of a court dealing with a request for discharge, the Court is to consider, whether, any such exercise has been duly undertaken by the learned court below in the case at hand. As per the FIR, the informant has alleged that she was in a relationship and could not avoid sexual intimacy with the petitioner as it was forced on her and, in the meanwhile, she became pregnant, in response to which, the petitioner promised their marriage but later on, avoided and ultimately, declined followed by the events described in the FIR. It is borne out of record that the informant gave birth to a male child and the DNA report proved his parentage vis-a-vis the petitioner. When the petitioner backed out and declined to marry the informant, under the circumstances described in the FIR, whether, a case under Section 376(2)(n) IPC CRLREV No.168 of 2024 Page 7 of 14 is made out for trial? The Court is also to find out and ascertain, if an offence under Section 493 IPC is also proved against the accused. The details of the facts leading to the relationship have been narrated by the informant in her statement under Section 164 Cr.P.C. As per the FIR and the above statement of the victim, the Court finds that initially the friendship was developed at a showroom, where both of them were engaged and thereafter, they fell for each other and also maintained sexual relationship. Of course, according to the informant, such physical relationship was forced on her by the petitioner. The fact is that, even with any such reluctance, the relationship between the parties thrived and not only that, during the relevant period, both had been to Bhubaneswar and Calcutta. Ultimately, when the informant demanded marriage, the petitioner alleged to have avoided her and in one of such incidents, abused the latter and committed certain overt acts and it was followed by misbehavior by the former’s parents, the report was lodged. With the nature of evidence on record, the Court is to examine, if the alleged offences under Sections 376(2)(n) and 493 IPC, in particular, are prima facie made out against the petitioner. 14. In Sonu alias Subhash Kumar (supra), the Apex Court, in case where the parties had a friendship initially and thereafter, the accused assured to marry the victim and both having had a relationship for one and half years, considering an allegation of sexual exploitation, concluded as hereunder: “10. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for CRLREV No.168 of 2024 Page 8 of 14 quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.” 15. The sum and substance of the above decision is that if there is merely a breach of promise to marry the victim, no case of rape is made out, but where, under a misconception of fact, the consent is obtained and it was on account of a false promise having a direct nexus with the victim’s decision to engage in sexual act, it would be an offence under Section 376(2)(n) IPC. 16. In the instant case, the informant is a young woman aged about 28 years, whereas, the petitioner is younger to her by four years but after the acquaintance, friendship was developed between them. On the proposal of the petitioner, as claimed, the relationship started with the acceptance of such proposal and it slowly turned towards sexual intimacy. Of course, the allegation of the informant is that the petitioner forced on her and as a result, physical relationship ensued. However, on a reading of the material evidence on record, it is made to reveal that the petitioner and informant had taken a decision to marry. The family of the informant was aware of the relationship between CRLREV No.168 of 2024 Page 9 of 14 her and the petitioner as further made to understand. It is suggested from the record that the petitioner was in visiting terms with the family of the informant. If there is no fraud played upon the victim or consent was not obtained under a misconception of fact, on account of a false promise of marriage, as earlier discussed with reference to case law (supra), the petitioner cannot be alleged of having committed an offence under Section 376(2)(n) IPC. Furthermore, the informant happens to be mature and intelligent enough to understand the consequences of the relationship, to which, she apparently consented to. From the FIR and other materials, the Court finds that it is difficult to reach at a conclusion regarding absence of any such intention on the part of the petitioner from the very beginning to marry the informant. As it appears, everything happened in natural course of events with the friendship and physical relationship being developed, though, such intimacy was with a little bit of hesitation on the part of the victim but by no stretch of imagination, it can be held that the intention of the petitioner was otherwise from day one. In view of the decision in Pramod Suryabhan Pawar Vrs. State of Maharashtra and Another (2019) 9 SCC 608, a false promise must be of immediate relevance or having a direct nexus with the decision of the victim vis-à-vis the sexual act. The said decision has been referred to in the case of Sonu alias Subhash Kumar. In other words, to establish, whether, the consent was vitiated by any mischief arising out of promise to marry, it must be held that such promise was given in bad faith without any intention to uphold the same in future and it was only to obtain such consent. 17. In the present case, the Court finds that the informant though claims to be slightly hesitant initially but accepted the proposal of the petitioner and even developed physical relationship with him and continued to remain so, till the time, it ended with the CRLREV No.168 of 2024 Page 10 of 14 untoward events, which took place shortly before the report was lodged. Merely, denying to keep up the promise is not sufficient and the same would result in breach of such promise, which is not a criminal act but to presume that an offence under Section 376(2)(n) IPC is committed, the promise has to be held as false and given in bad faith having no intention at all to adhere to the same. Such conduct of the accused is to be examined considering the material evidence with a prima facie view that the intention was otherwise and not in good faith at the time when the promise was offered. As far as the petitioner is concerned and also the victim, the Court finds that everything started inoffensively including the physical relationship followed by a promise of marriage, which failed to be materialized at last. Since, the promise failed and the petitioner avoided the informant and subsequently, declined to marry her, is the reason behind lodging of the FIR with an allegation of rape, which in the considered view of the Court, may not be sufficient to hold that such consent was no consent in the eye of law having been vitiated by misconception of fact or fraud arising out of promise to marry. Such sexual relationship between the parties, consequent upon, a promise of marriage during the continuance of the same by itself not to be sufficient to hold that the promise was given in bad faith. It is again not found to be a case where a false promise of the petitioner and subsequent consent of the victim was obtained with such promise. It is further not revealed that the informant consented to the sexual act only upon the promise of the petitioner to marry her. If such was the intention and false promise shown to be having a direct nexus with the consent obtained for the sexual act and then, it is broken, an offence of rape could be made out, since, it may be said to have been vitiated by fraud. However, having regard to the nature of allegations made in the FIR and materials collected and produced CRLREV No.168 of 2024 Page 11 of 14 along with the chargesheet, the informant, after having a relationship with the petitioner and the marriage between them having not taken place, alleged sexual exploitation and rape, which, in view of the discussion as aforesaid and keeping in view the ratio laid down by the Apex Court in Sonu alias Subhash Kumar, cannot be the basis to hold that an offence under Section 376(2)(n) IPC is made out. 18. As far as the offence under Section 493 IPC is concerned, it is not a case that cohabitation between the informant and petitioner did take place by any deceitful means inducing a belief of existence of a lawful marriage. On a reading of the ingredients of the offence under Section 493 IPC, it would mean that in order to establish a person to have committed such an offence, it must be shown that he deceitfully induced and made the woman to believe that she is lawfully married to him and thereupon cohabits. In other words, inducement of a woman resulting her to carry such a belief is sine qua non. A Full Bench decision of the Kerala High Court in Moideenkutty Haji and others Vrs. Kunhihoya and others AIR 1987 Kerala 184 is referred to in the decision of Allahabad High Court in Brij Mohan Kushwaha (supra), which may be profitable to quote and hence, reproduced herein below: “XXX The essence of the section is therefore the deception caused by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him while, in fact, they are not lawfully married. In order to establish deception, there must first be allegations that the accused falsely induced her to believe that she is legally wedded to CRLREV No.168 of 2024 Page 12 of 14 him. In the complaint in this case there is no allegation of any such deception or inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage look place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true the section is not being attracted. The allegation is that though they are not husband and wife they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint, in only a promise to marry in future. The strange part of it is, there is the further allegation that one day they went for registering the marriage, but the petitioner ran away from there and even thereafter she was submitting herself to him regularly for liaison. The facts cannot at any rate attract Section 493, I.P.C.” 19. If the decision (supra) is read and understood, existence of a sexual relationship by itself not to be sufficient enough. To hold that an offence under Section 493 IPC is made out, what is to be shown is that a deceitful cohabitation under a false belief of existence of a lawful marriage, The victim, if managed in a way, to make her believe that the accused to be her lawfully wedded husband and upon such belief, the latter cohabits, in such a situation, the said offence is said to be committed. In the instant case, the allegation is based on the premise that the petitioner had promised to marry, either before or after, he had sexual relationship with the informant, who, hence, had never been CRLREV No.168 of 2024 Page 13 of 14 under delusion that she was lawfully married. It is not that some kind ceremony was performed involving the parties so as to make the victim to believe so. As both of them were well aware of the fact that they are not yet married and still had been in physical relationship, there is no rational ground for one to believe to the contrary. As a consequence, the irresistible conclusion of the Court is that an offence under Section 493 IPC is not established even remotely. Such a conclusion is arrived at considering the materials on record and regard being had to the settled principles of law discussed with reference to the citations relied on by both the sides. As regards, other offences, the Court is of the considered view that a prima facie case is made out for trial. 20. Hence, it is ordered. 21. In the result, the revision stands partly allowed. As a necessary corollary, the impugned order dated 14th March, 2024 under Annexure-4 passed in connection with S.T. No.123 of 2022 by learned 1st Additional Sessions Judge, Berhampur is hereby set aside to extent indicated herein above. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 24-Dec-2024 19:03:04 CRLREV No.168 of 2024 Page 14 of 14